In the News

Cruel And Usual

One of the worst ideas Americans have embraced recently is the belief that a decent society must be run at a profit. Government can easily come to resemble kudzu. You have to keep an eye on it and cut it back constantly if you don’t want it to grow completely out of hand. That said, there are some attempts to save the taxpayers money that actually undermine our most basic values.

eric palma2006_3_22

One of the worst ideas Americans have embraced recently is the belief that a decent society must be run at a profit. Government can easily come to resemble kudzu. You have to keep an eye on it and cut it back constantly if you don’t want it to grow completely out of hand. That said, there are some attempts to save the taxpayers money that actually undermine our most basic values.

One such effort was described by Adam Liptak in a recent article in The New York Times . Mr. Liptak’s piece outlined current attempts across the United States to control the cost of prosecuting and incarcerating criminals by charging higher and higher “fees” both to convicts and to those who are still only accused of committing some offense.

The charging of criminal fees is pernicious, because such levies often serve as an additional, hidden burden upon defendants who are poor to begin with. These include “application fees” and “copayments” for public defenders, charges that significantly undermine the Supreme Court’s landmark Gideon v. Wainwright decision of 1963, which mandates that even defendants too poor to afford a lawyer are entitled to have one. Other charges in various states include $15 for a drug test, $40 for a court-ordered anger-management class, and $100 to add a defendant’s DNA to a database. Still worse, these fees are regularly ratcheted up whenever state and local governments decide to “outsource” their responsibilities.

“Private probation companies charge $30 to $40 a month for supervision. Halfway houses charge for staying in them,” writes Liptak. “People sentenced to community service are required to buy $15 insurance policies for every week they work.

In Louisiana a man who served 44 years in prison on a murder charge that was eventually reduced to manslaughter came out to find himself owing some $127,000 in court costs. The money included jury restaurant and hotel costs for three earlier trials that had been invalidated by higher courts. In other words, the state’s inability to put on a fair and proper trial in three tries led to a steeper penalty on the defendant—and food and drinks all around for three sets of jurors.

The potential for corruption here should be obvious. A government that can fob off costs on criminals has an incentive to find criminals everywhere. And defendants threatened with higher fees through extended trials are all the more likely to be intimidated into pleading guilty—whether they really are or not.

If all this is not self-evident, one need only take a look at how the whole idea of jail fees exacerbated one of colonial America’s most infamous miscarriages of justice, the Salem witch trials. Historians still debate just what was responsible for the madness that descended upon Salem in 1692, blaming everything right down to toxic rye. But what is not in dispute is how the persecutions were enabled by the Massachusetts Bay Colony’s prison laws.

Before the witch-hunts were finally ended by the intervention of the colony’s governor in early 1693, some 200 men, women, and children had been accused of witch-craft, and 156 had been arrested. Of these, 19 were hanged and one was slowly pressed to death under stones. The remainder were imprisoned on average for some four and a half months.

The question arises of just how this prison gulag was sustainable in the small, rural communities of Essex County. The answer was simple enough: The prisoners paid for it themselves.

“Even if you were wholly innocent, if it were proved that you had been wrongfully deprived of your liberty, you still could not leave until you had reimbursed the jailer for his expenditures in your behalf, the food he had fed you, the shackles he had placed on your wrists and ankles,” wrote Marion L. Starkey in her history The Devil in Massachusetts . Peter C. Hoffer, author of a recent legal history of the trials, adds: “All prisoners paid for firewood and food or had it delivered by friends and family. The poor in prison thus suffered most. Jailers—called keepers —were jobbers and often negligent.”

These keepers kept prisons that were, in the words of the historian Bryan F. Le Beau, “dark and dank, unheated and unhealthy.” They were also “overflowing to the point where private contractors were being hired to care for many of the prisoners in their homes, barns, or other buildings.” Those private contractors again! In the seventeenth century this meant many of the accuseds’ neighbors stealing their property, as well as their liberty, through the jail fees.

Of course, the jails these good citizens provided were rather flimsy. But breaking jail—or skipping bail—resulted in the irrevocable confiscation of your property, even if you were later found to be innocent. Essex County’s sheriff, George Corwin, seems to have been an exemplar of confiscation. An account of the period describes Corwin’s visit to the home of John and Elizabeth Proctor, two of the first victims of the town’s collective obsession. Corwin not only “seized all the goods, provisions, and cattle that he could come at” but even “threw out the beer of a barrel, and carried away the barrel; emptied a pot of broth, and took away the pot, and left nothing in the house for the support of the children.”

The support of the children was rarely a matter of any concern to the New England judicial system in 1692. Petitions to the governor to release prisoners in the wake of the witch-hunt included those made in the names of Stephen and Abigail Johnson, who were 13 and 11 years old, respectively; Dorothy Faulkner, aged 10; and Abigail Faulkner and Sarah Carrier, both eight.

Apparently not even these children were released until some provision could be made to pay off their accumulated “fees.” Adults fared even worse; coming up with the money could easily mean having to mortgage their farms, thereby reducing themselves to instant peonage. One Mary Watkins was released only when she persuaded her jailer to sell her off to a Virginia man as his indentured servant. No one saw any such value in the 81-year-old Sarah Daston; she was simply left in prison until she died. Three other adults and a newborn baby also died in jail before they could be released.

Yet perhaps the saddest petition of all was made in the name of the dead child’s older sister, Dorcas Good. The petition, to the General Court of Massachusetts, was written in 1710, at a time when the more or less repentant citizens of the colony were making modest restitution to some of the victims and their families. Dorcas’s mother, Sarah Good, was a salty, pipe-smoking woman, who had made the most famous speech from the gallows, defiantly telling one of her judges, “If you take my life away, God will give you blood to drink.” Now her husband, William Good, wrote of their daughter, confined with her mother and her dying infant sister, 18 years before:

“A child of four or five years [she] was in prison seven or eight months, and being in the dungeon was so hardly used and terrified that she hath ever since been very chargable, having little or no reason to govern herself. And I leave it unto the honorable Court to judge what damage I have sustained by such a destruction of my poor family… .”

It is very possible that a prison system that didn’t pay for itself quite so efficiently would have banished the devil from Salem before such brutalities were visited upon a little child. Without income from the prisoners themselves, the Massachusetts colony never would have been able to keep its murderous, jerry-built, witch-hunting machine going for so long. Only a people that pays for its own system of justice can judge the true worth of its laws.